This Guide is intended to answer questions about applications, eligibility, benefits, and appeals in the unemployment insurance (UI) process, which in Massachusetts is operated by the Department of Unemployment Assistance (DUA). It contains citations to relevant employment statutes, regulations, and case law as well as to policies, practical information, and exhibits useful to those navigating the system. It aims to assist advocates through the maze of laws and regulations and to provide advocates with the tools necessary to help unemployed workers obtain the UI to which they are legally entitled.
We strongly encourage legal services programs, as well as other advocates, to offer representation to low-income claimants in unemployment cases. UI is a crucial income support program for people who have lost their jobs, and representation at a UI hearing significantly increases the claimant’s ability to prevail. An unrepresented claimant is at a distinct disadvantage without legal assistance: a UI hearing may very well be the claimant’s first experience with the legal system, and, unlike the employer, the claimant will often not have access to employment records or know how to cross-examine a former employer.
The need for UI advocates has increased, as fewer workers have job security ensured by collective bargaining agreements or statutory protections such as antidiscrimination laws. Lacking job security safeguards, these workers are now more vulnerable to periods of job loss and are often entirely dependent on UI for income support. As employers continue to contest their former employees’ claims to UI, and following the introduction of an English-only UI Online System (see Question 1), advocacy on behalf of all claimants including Limited English Proficient claimants (see Question 52) remains urgently needed. For problems with systems requiring computer access in the UI program and generally, see National Unemployment Law Project, Closing Doors on the Unemployed: Why Most Jobless Workers Are Not Receiving Unemployment Insurance and What States Can Do About It, 2017, available at https://www.nelp.org/publication/closing-doors-on-the-unemployed/; and Federal Neglect Leaves State Unemployment Systems in a State of Disrepair at 15 n. 76, 2013, available at http://nelp.org/publication/federal-neglect-leaves-state-unemployment-sy... and Danielle Citron, Technological Due Process, 85 Wash. U. L. Rev. 1249 (2008).
The legal analysis of a worker’s UI claim is fundamentally different from the analysis of that worker's right to employment. The issue in a UI case is not whether the employer was justified in discharging the claimant but whether UI benefits should be granted or denied. Torres v. Dir. of the Div. of Emp't Sec., 387 Mass. 776, 443 N.E.2d 1297 (1982). The UI statute presumes eligibility unless the circumstances of a worker’s separation from employment fall within a particular statutory disqualification. And as described below, section 74 of G.L. c. 151A requires that the statute be liberally construed in favor of the worker and the worker’s family.
Over the last few decades, many important court decisions, legislative changes, and regulatory and policy changes have, by and large, improved access to and receipt of UI by unemployed workers. In 2014, the legislature made several reforms to UI law noted throughout this guide. St. 2014, c. 144. Of particular interest to claimants and their advocates are new protections against retaliation for participating in the adjudication of a UI matter. (See Question 58.)
The Supreme Judicial Court (SJC) issued an important decision interpreting the term “knowing violation” of an employer’s work rule to include an element of “intent,” thereby ensuring that discharged claimants who do not have the requisite state of mind to violate a work rule will not be disqualified from benefits. Still v. Comm'r of the Dept. of Emp't & Training, 423 Mass. 805, 672 N.E.2d 105 (1996). (See Question 13 for further discussion of required state of mind findings in rule-violation cases.) Still is an important case to read: in addition to the importance of its holding, it provides a useful overview of how the court has interpreted the UI statute.
Significantly, the Still Court noted in arriving at its decision favorable to the claimant that the unemployment statute is a remedial law to be construed “liberally in aid of its purpose, which purpose is to lighten the burden which now falls on the unemployed worker and his family.” (G.L.c. 151A, § 74.) This statutory purpose has guided many other court decisions in a variety of UI contexts: Cape Cod Collaborative v. Dir. of the Dep’t of Unemployment Assistance, 91 Mass. App. Ct. 436, 76 N.E. 3d 265 (2017); Driscoll v. Worcester Telegram & Gazette, 72 Mass. App. Ct. 709, 893 N.E.2d 1239 (2008); Pavian, Inc. v. Hickey, 452 Mass. 490, 895 N.E.2d 480 (2008); State St. Bank & Trust Co. v. Deputy Dir. of the Div. of Emp't Sec., 66 Mass. App. Ct. 1, 845 N.E.2d 395 (2006); Morillo v. Div. of Emp't Sec., 394 Mass. 765, 477 N.E.2d 412 (1985); Emerson v. Div. of Emp't Sec., 393 Mass. 351, 471 N.E.2d 97 (1984); Markelson v. Div. of Emp't Sec., 383 Mass. 516, 420 N.E.2d 328, 329 (1981); O'Reilly v. Div. of Emp't Sec., 377 Mass. 840, 388 N.E.2d 1181, 1184 (1979); Roush v. Div. of Emp't & Training, 377 Mass. 572, 387 N.E.2d 126, 129 (1979); Garfield v. Div. of Emp't Sec., 377 Mass. 94, 384 N.E.2d 642, 644 (1979); De Cordova and Dana Museum and Park v. Div. of Emp't Sec., 370 Mass. 175, 346 N.E.2d 699, 703 (1976); Worcester Telegram Pub. Co. v. Div. of Emp't Sec., 347 Mass. 505, 198 N.E.2d 892, 897 (1964). Notwithstanding this large body of jurisprudence requiring a liberal construction of the law in favor of the claimant, DUA has narrowly interpreted this statutory mandate. DUA takes the position that if the facts are equally balanced between the claimant and the employer and the adjudicator is unable to reach a conclusion, the determination must follow the burden of persuasion: against the claimant in voluntary quit cases and against the employer in discharge cases. DUA’s Unemployment Insurance Policy and Performance (UIPP) # 2015.04, Application of the “construed liberally” language in G.L. c. 151A, §74 (7/9/15), available at https://www.masslegalservices.org/system/files/library/UIPP%202015.04.pdf.
Advocates should be aware that UI can not only provide workers with critical income supports, but also can provide up to 26 weeks of extended UI benefits to pursue vocational education and training opportunities. These benefits, (discussed in more detail in Question 53 below) can significantly increase the economic well-being of workers who have lost employment, and we encourage advocates to help workers take greater advantage of them by learning about the range of training programs and also the time limits within which claimants may apply for extended UI benefits. Moreover, rights to extended training benefits were expanded as a Congress's passage of the American Recovery and Reinvestment Act of 2009 (ARRA) and the enactment of companion legislation in Massachusetts (St. 2009, c. 30, §§ 1 – 3 amending G.L. c. 151A, § 30.) Legislation enacted in 2016, St. 2016, c. 219, §§ 107 - 110 has made access to these extended benefits easier. (See Question 53.)
This guide is an overview of the relevant law and regulations of the UI system. In addition to this Guide, advocates should obtain and review DUA’s regulations and its sub-regulatory policies promulgated in the Massachusetts Unemployment Adjudication Handbook, identified throughout this Guide as "AH" and DUA's Unemployment Insurance Policy and Performance memos, identified throughout this Guide as "UIPP." Both the AH and the UIPP memos discuss some important policy changes, including the agency's comprehensive policy on domestic violence. (See the Sources of Law paragraph below for information about obtaining a copy of the AH or the UIPP memos.) Finally, for an excellent overview on the reforms needed on a federal and state level to ensure appropriate financing of the UI system, adequate reemployment services, and other changes, see Wandner, S. (ed.), Unemployment Insurance Reforms: Fixing a Broken System, W.E. Upjohn Institute for Employment Research, Kalamazoo, MI (2018), available at www.upjohn.org.
An advocate involved in any DUA appeal should have knowledge of unemployment insurance law (set out in this Guide) as well as a basic grounding in state administrative procedure. For an excellent summary of the principles of judicial review that apply to UI cases, advocates are advised to read NSTAR Electric Co. v. Dep’t of Public Utilities, 462 Mass. 381, 968 N.E. 2d 895 (2012).
Where to Find Legal Help
UI applicants whose current income fits within low income guidelines (generally 125% of the federal poverty income guidelines) can request assistance free of charge from various community legal services programs.
To find legal help with an unemployment insurance problem in Massachusetts, use the Legal Resource Finder, www.masslrf.org. The LRF provides contact information for legal aid and other programs that may be able to help for free or at a low cost. It will also provide links to legal information and self-help materials.
Those with incomes of less than 125% of the federal poverty guidelines can also contact one of the following programs for intake and referral:
Eastern Regional Legal Intake (ERLI)(Greater Boston and Metro West): 617-603-1700
South Coastal Counties Legal Services (Southeastern Massachusetts): 800-244-9023
Northeast Legal Aid (Northeast Massachusetts): 978-458-1465
Community Legal Aid (Central and Western Massachusetts): 855-252-5342
In addition, the Massachusetts Bar Foundation funds a Pro Bono Unemployment Representation Project through GBLS' Employment Law Unit in cooperation with the Volunteer Lawyers Project, ERLI, and local law school clinical programs. Client referrals are handled through ERLI. Lawyers who participate receive a reduced cost for this Guide and MCLE training and supervision. If you are a lawyer and want to participate, call the Volunteer Lawyers Project at 617-603-1700 or visit their website at https://www.vlpnet.org.
In addition to this Guide there are many experienced employment advocates who would be happy to discuss case strategy and provide advice for advocates new to this field. Massachusetts is also lucky to have an Employment Rights Coalition that provides information concerning UI policies and strategies as well as other issues impacting low-wage workers. We strongly encourage legal services and workers’ advocates to participate in this coalition: send an email to Brian Reichart (email@example.com) at MLRI if you would like to do so.
Note on Related Laws and Benefits
Advocates should be aware of other laws and benefits that may affect their clients. DUA and the Department of Career Services (operating MassHIRE Career Centers) are covered under the Americans with Disabilities Act (ADA) and the Americans with Disabilities Amendments Act of 2008. (42 U.S.C. §§ 12101-12213) (2008). If a client is denied services or needs an accommodation because of a disability, the advocate should consult with disability advocates for advice. Additionally, DUA and the Career Centers have a legal obligation to provide equal services to claimants with limited English proficiency (LEP), under both federal Department of Labor regulations and the Massachusetts unemployment law. 68 Fed. Reg. 32290 (May 29, 2003) codified at 28 C.F.R. pts. 42.101-42.412 (Department of Labor regulations implementing the Title VI prohibition against national origin discrimination affecting LEP persons); G.L. c. 151A, § 62A. The rights of LEP claimants have expanded in Massachusetts as a result of the settlement of a lawsuit brought by Greater Boston Legal Services. (See Question 52.)
Workers have additional rights as a result of the 2010 law known as CORI (Criminal Offender Record Information) Reform Law, G.L. c. 6, § 172. This law makes it unlawful to request or require that individuals indicate on an initial application form whether the individuals have a criminal record or provide a copy of their CORI (except under certain circumstances specified in the law) and prohibits employers from requesting, keeping a record of, or otherwise discriminating against any individuals by reason of their failure to furnish certain types of criminal record information, under the Fair Employment Practices Act, G.L. c. 151B, § 4(9) and § 4(9).
Workers have protection against discrimination on the basis of race, color, religion, creed, national origin, sex, pregnancy, gender identity, sexual orientation, age, handicap, ancestry and genetics, service in the military as well as protection against retaliation for opposing discrimination, filing a complaint, testifying or assisting in any proceeding. G.L. c. 151B, §§ 4, 19.
Furthermore, many clients have worked for employers covered under the federal Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq. If a client’s separation from work was due to the birth or adoption of a child, or due to a serious health reason for either the client or their immediate family member, the advocate should check to see whether the employer’s discharge violated the FMLA (requirements include company size of 50 employees or more and employment of at least 1,250 hours for a year). Most employees working in companies of 6 or more employees in Massachusetts are also entitled to up to 8 weeks of job-protected unpaid leave for birth or adoption under the Massachusetts Paternal Leave Act, G.L. c. 149, § 105D, amended to be gender neutral. St. 2014 c 484. Employees of Massachusetts employers who meet the more stringent requirements of company size and duration of employment for the FMLA may also be eligible for up to 24 hours per year of job-protected unpaid leave to participate in children’s school and medical appointments, and to care for elderly relatives, under the Small Necessities Leave Act, G.L. c. 149, § 52D.
The Domestic Violence Leave Act, St. 2014, c. 260, § 13 amending G.L. c. 149, § 52E, provides unpaid leave for employees affected by domestic violence. The Act requires employers with more than 50 employees to provide 15 days of leave if an employee or an employee’s immediate family member is a victim of abusive behavior, and if the absence is used to seek medical assistance, counseling, or legal assistance, to secure housing, obtain a protective order, or appear in court. Individual employers are given discretion to determine whether such leave will be paid or unpaid. While an employer may require documentation of abusive behavior from the employee (including protective orders, court documents, medical documentation, a sworn statement of a counselor, legal advisor, or healthcare worker, or a sworn statement by the employee), the employer must keep all information related to such leave confidential unless the employee consents to disclose information, if the law requires it, or if disclosure is necessary to protect the safety of the employee or others employed at the workplace.
Employees can also use the Massachusetts Earned Sick Time law, amending G.L. c. 149, § 148C. The law guarantees all workers in Massachusetts access to job-protected earned sick time to care for their health and that of their families. Up to 40 hours leave under this law is also available to workers who must deal with the physical, psychological or legal effects of domestic violence. Leave is accrued at the rate of one hour of leave for every 30 hours worked. At companies with 10 or fewer employees, workers can earn up to 40 hours of unpaid sick time per year; companies with 11 or more employees must let workers earn up to 40 hours of paid sick time yearly. See https://www.mass.gov/info-details/earned-sick-time.
In the 2018 legislative session, Massachusetts passed a comprehensive paid family and medical leave insurance program. An Act Relative to Minimum Wage, Paid Family Medical Leave and the Sales Tax Holiday, St. 2018, c. 121, §§ 28 – 30, adding chapter 175M. Notably, all employees (including self-employed individuals) who meet the monetary eligibility requirements of the UI program, have 4 consecutive quarters of reported earnings to the MA Department of Revenue and who join the program and pay premiums for at least 3 years are eligible for job-protected leave for family and medical reasons (capped at 26 weeks). The law takes effect on January 1, 2019 and the benefits and protections for taking leave are available starting either January 1, 2021 or July 1, 2021 depending on the type of leave. St. 2018, c. 121 §§ 34, 35.The same act also increased the minimum wage to $15.00 an hour by January 1, 2023 (with annual increases each January 1st to $12.00 in 2019, $12.75 in 2020, $13.50 in 2021, $14.25 in 2022). St. 2018, c. 121, §§ 17 – 21, 31 – 37. Additionally, the act increased the wage for tipped employees to $6.75 an hour effective on January 1, 2023 (with annual increases each January 1st to $4.35 in 2019, $4.95 in 2020, $5.55 in 2021, $6.15 in 2012). St. 2018, c. 121, §§ 22 – 26, 31 – 37. Paid Family and Medical Leave (PFML) Benefits became available beginning on January 1, 2021. Beginning January 1, 2021, eligible PFML claimants may take up to 20 weeks of job-protected, paid medical leave to manage one’s own serious health condition, or up to 12 weeks of job-protected, paid leave for most categories of family leave. The remaining family leave provisions, allowing up to 12 weeks of job-protected, paid leave went into effect on July 1, 2021. M.G.L. c. 175M, § 2. More information about eligibility, potential benefit amounts, and how to apply can be found at the Department of Family and Medical Leave’s website: https://www.mass.gov/orgs/department-of-family-and-medical-leave.
Workers who lose their jobs due either to plant closings (or the closing of a significant portion of the plant) or to business closings triggered by NAFTA are eligible for additional pre-separation notice, many weeks of benefits and/or training. (See Question 53 for a description of rights under the Trade Adjustment Assistance program.)
On July 1, 2018, an updated equal pay law went into effect in Massachusetts, clarifying what conduct constitutes unlawful wage discrimination and adding protections to ensure greater fairness and equity in the workplace. The statute, Chapter 177 of the Acts of 2016, An Act to Establish Pay Equity, amends the Massachusetts Equal Pay Act, M.G.L. c. 149, § 105A (“MEPA”). The law and guidance by the Attorney General about its application are available at: https://www.mass.gov/massachusetts-equal-pay-law.
Low-wage workers, including UI recipients, may also be eligible for other income support programs, such as the SNAP program (formerly known as the Food Stamp program) Moreover, they may be eligible for housing assistance, such as the Section 8 program and the Massachusetts Rental Voucher program. Changes in the welfare system have forced increasing numbers of single mothers into the low-wage labor market. Some UI claimants may be eligible for cash assistance (Transitional Aid for Families with Dependent Children, or TAFDC) while waiting for approval of their UI claims. Receiving TAFDC during this gap not only provides much needed income, it may also allow the child's parent to secure subsidized childcare when she does return to work. We encourage advocates to become familiar with these other potential sources of income support as part of their representation of their clients. (See Appendix R for a listing of these other programs.)
Massachusetts Legal Services Website: www.masslegalservices.org
An online version of this Guide with links to many of the decisions issued by the Board of Review and much more information about the UI program in Massachusetts (including the Adjudication Handbook and DUA's Unemployment Insurance Policy and Performance (UIPP) memoranda issued before January 1, 2017), are available to the public via the internet at the address above, under Employment/Unemployment Insurance. Other areas of that website provide information on other antipoverty programs and services.